In re C.B.D.
Filed 7/27/12 In re C.B.D. CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re
C.B.D. et al., Persons Coming Under the Juvenile Court Law.
MARIN
COUNTY HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
C.D.,
Defendant and Appellant.
A132559, A132864
(Marin County Super. Ct.
Nos. JV25114A, JV25115A)
C.D.
(Mother), mother of 15-year-old A.M., 7-year-old C.B.D., and 2-year-old C.D.,
appeals from the juvenile court’s orders denying her petition under Welfare and
Institutions Code section 388 (388 petition) and terminating her parental
rights to C.B.D.
title="">[1] Mother previously filed a petition under
California Rules of Court, rule 8.452 to set aside the juvenile court’s
order setting a permanency hearing
under section 366.26 (366.26 hearing) for all three children, and we
affirmed the order as to C.B.D. and C.D.
(April 22, 2011, A130664).
court erred in: (1) summarily
denying her 388 petition; and (2) terminating her parental rights to
C.B.D. because the sibling relationship exception applied. We reject the contentions and affirm the
orders.
Factual and Procedural Background
We
hereby summarize the jurisdictional and dispositional facts that are set forth
in more detail in our first opinion.
“The Marin County Department of
Health and Human Services (the Department) filed an original petition on
July 7, 2010, alleging Mother inflicted serious physical harm on A.M. and
C.B.D. and subjected them to cruelty, placed C.D. at substantial risk of being
abused or neglected, and left all three children without any provision for
support.” (A130664, p. 2.) “Mother hit A.M. and C.B.D. with ‘a spatula
and wooden spoon causing visible traumatic injuries including, but not limited
to, bruising and swelling’ to various parts of their bodies including their
faces, arms and legs. She placed A.M. in
a headlock, choked her and punched her in the
to suffer a ‘clinically broken nose.’
She cut A.M.’s hair with a pair of scissors as A.M. struggled to get
away, then shaved off her hair and threatened to kill her if she called the
police or told anyone of the abuse.
Mother held C.B.D. ‘upside down by one foot, and threw him onto a sofa,
causing his head to hit the end of the arm rest. [She] then slapped [C.B.D.] across the face
as he appeared unconscious and listless, and not responding to [her] calls. [She] then proceeded to cut [C.B.D.’s]
clothes off with a pair of scissors, rendering him naked, grabbed him by the
penis, pulled [him] upwards, and continued to strike him with a wooden
spoon.’ ” (A130664,
p. 2.) “Mother had a history of 12
referrals in three counties, one of which involved an allegation that she
abused her younger sisters and 11 of which involved allegations of abuse or
neglect of her children.” (
She had been offered various services since 2001. (A130664, pp. 2-3.)
The
juvenile court detained the children on July 8, 2010. (A130664, p. 5.) Mother, who had pleaded guilty to two counts
of assault and battery with a deadly weapon, “expressed some remorse for her
actions . . . but [stated] that she did not ‘remember much of what
happened.’ She ‘ “felt
awful” ’ about what she did to A.M. but ‘ “couldn’t take it because
[A.M.] would be rude.” ’ . . . Her blood alcohol level was .26
when she was arrested and the detoxification process took a week. Mother said she used alcohol as a way to
‘self soothe’ and as a ‘reward as she fe[lt] that with the children she never
ha[d] time for herself.’ Mother said she
did not believe alcohol affected her parenting because she did not drink until
night time when the children were asleep.”
(A130664, pp. 6,7.)
“The
Department recommended bypassing reunification
services to Mother and scheduling a . . . 366.26 hearing. Mother had previously been offered
approximately 19 months of court mandated services but had failed to
utilize skills she had learned or maintain progress she had made. A.M. had expressed distress and concern about
Mother hurting her and her siblings, and C.B.D. ‘stated quite clearly that he
need[ed] his mother to be removed from him [in order for him] to be safe.’ Mother had pleaded guilty to and was
convicted of ‘two violent felony counts,’ and the children had suffered and/or
were at risk of suffering severe abuse.
The Department believed it was unlikely that the successful completion
of an alcohol treatment program would preserve the children’s lives, safety and
well being.” (A130664, pp. 8-9.)
At
a contested jurisdictional and dispositional hearing, A.M. testified in detail
regarding the incidents of abuse, including how Mother hit her in the face,
arms and hands, punched her in the head and nose while threatening to break her
nose, choked her, forced her to take a cold shower while taunting her and cut,
then shaved off, her hair, made her clean up the hair, and called her
names. (A130664, pp. 10-11.) Mother attacked C.B.D. by, among other
things, repeatedly hitting him and knocking him down for saying he was hungry,
choking him as she counted to five after he responded he was five years old,
following him into his room and “body slamm[ing] him . . . into the
couch,” slapping him hard in the face when he was limp and not moving, and
cutting his clothes off with scissors.
(A130664, pp. 10-11.)
“The
juvenile court took jurisdiction over the children and set the matter for a
. . . 366.26 hearing as to all three children. It found the incidents of July 4 and 5,
2010, caused the children severe emotional harm and that providing
reunification services to Mother would not be beneficial to the children
because it would expose them ‘to a parent who has a history of serious alcohol
abuse, culminating in an alcoholic rage over the July 4th weekend’ and to ‘a
parent who may have psychological
problems stemming from her own abusive childhood.’ The court noted that Mother had received various
services in the past, including alcohol education and parenting classes, and
that those services had ‘made no difference.’
The court temporarily placed A.M. with her father . . . [and]
further ordered that C.B.D. and C.D. be removed from Mother’s custody and that
reunification services to Mother be denied.”
Mother challenged the orders and we affirmed the order setting a 366.26
hearing as to C.B.D. and C.D., concluding there was substantial evidence
supporting the findings that the children were subjected to acts of cruelty and
that Mother was not entitled to reunification services. (A130664, pp. 16-19.)
C.D.
and C.B.D. had been living together in a fost-adopt home since July 2010
but C.B.D. was removed from that home in April 2011 after the family
determined they were no longer able to care for him. C.B.D. was placed in an emergency foster
home, then moved to a new fost-adopt home on May 11, 2011. Mother had been having supervised visits with
C.D. on a regular basis. She was playful
and appropriate with C.D. and the visits had been going well. C.D. was generally more distressed leaving
her fost-adopt mother and visit supervisors than she was leaving Mother.
In
March 2011, C.D.’s alleged father, D.P., appeared for the first time. After a paternity test determined D.P. was
C.D.’s biological father, the juvenile court found D.P. was C.D.’s presumed
father and ordered reunification services and visitation for him. D.P. visited with C.D. for the first time on
April 12, 2011, and acted appropriately with her. According to a report dated June 6,
2011, the Department had assessed the home of D.P. and his girlfriend and had
found it clean and spacious and appropriate for C.D. D.P. and his girlfriend wanted C.D. to live
with them and had a plan for supporting her.
On June 27, 2011, the juvenile court ordered that C.D. be placed
with D.P. after a transition period and ordered a six-month family maintenance
plan for D.P. It also ordered that
Mother have two monthly supervised visits with C.D.
The
Department filed 366.26 reports recommending that the court terminate Mother’s
parental rights to C.B.D. and order adoption as his permanent plan. C.B.D. was in good health, not on any
medications, developmentally on target, and doing well in school. He was active and easily excitable but his
previous fost-adopt mother was “able to redirect him without too much
trouble.” “Despite [C.B.D.’s] history of
abuse and neglect and his recent placement disruption,” he was “generally doing
well.” He expressed “great
disappointment and intense emotions about no longer living with his previous
fost-adopt family,” but continued to talk about wanting a “forever family” and
did not spontaneously speak of Mother.
Based on the previous fost-adopt family’s reports that C.B.D. was
exhibiting sexualized behavior and severe tantrums, additional services were
being provided and C.B.D. had responded positively to treatment. He had also been working with two therapists
to overcome the abuse and neglect he had suffered. Mother had had no visits with C.B.D. because
C.B.D. had not asked to see her and his therapist believed visitation would be
detrimental to his well being.
The
Department described C.B.D. as a “very sweet, lovable child who is attached to
his siblings . . . .”
“The siblings have a stable and solid sibling bond, one that will need
continued nurturing. Despite the abuse
and early childhood trauma [C.B.D.] has had to endure at the hands of his
biological mother, he has overcome many issues and has developed into a
sensitive and loving little boy.” His
new fost-adopt family was committed to the long term plan of adoption. The family was vigilant about keeping up with
medical appointments, did not delay in getting him into therapy, and was aware
of his needs. After a few weeks, C.B.D.
asked his fost-adopt parents if he could call them “mom” and dad,” and he
looked to his new family for guidance and reassurance. The Department believed that another family
could be located if his fost-adopt family was, “for some unforeseen reason,”
unable to adopt him.
On
June 27, 2011, Mother filed a 388 petition requesting, among other things,
reunification services, increased visitation with C.D., and therapeutic visits
with C.B.D. She asserted she had “made
tremendous progress and growth in addressing [her] alcohol problems and [had]
remained clean and sober for one year . . . .” The juvenile court summarily denied the
petition, finding Mother had not shown a prima facie basis to set aside prior
orders.
At
the 366.26 hearing, the social studies reports were admitted into evidence and
several witnesses testified. A social
worker testified about C.B.D.’s fost-adopt home, confirmed C.B.D.’s strengths
as outlined in the reports, and testified about his strong relationship with
his fost-adopt family. She further
testified that C.B.D. had visited with A.M. and C.D., which he said was “really
fun.” C.B.D. also had phone contact with
A.M. once a week and was visiting C.D., who was living with her father. Another social worker testified that she
observed a visit between C.B.D. and C.D. and that the children appeared to be
having fun. C.B.D. also had positive
visits with A.M. before she moved to her father’s place, and he still had
weekly contact with her, during which A.M. sometimes read stories to C.B.D.
over the phone.
Mother
introduced a report from a social worker for Adopt a Special Kid, who had
observed C.B.D. to be very attached to A.M. during a visit. Mother also called Dr. Catherine Main to
testify regarding C.B.D.’s bonding with his siblings and the benefit of
maintaining his relationship with Mother.
Dr. Main testified it was “probably difficult for [C.B.D.]” not to see
his siblings with whom he had grown up, and that it was “certainly a
loss.” It was important for his self
image to maintain his relationships with his siblings because it would remind
him that he is “thought of and cared about and loved by people that have been
in his life since he was born.” She also
believed that a therapeutic visit with Mother would be beneficial because it
would “help him to hear from the source, which is his mother, that she’s the
one that’s solely responsible and that he, in no way, caused what happened to
him . . . .” She also
believed there was “an attachment that exists between [him] and his mother,”
and that “even if it’s an insecure attachment, it still exists.” Dr. Main testified that when she met with
C.B.D., he said he missed Mother sometimes but responded “no” when asked
whether he wanted to see her. She believed
C.B.D.’s therapists were the ones best able to answer whether he was ready to
“handle a visit with his mother.” Dr.
Main agreed that ultimately, C.B.D. being “in a permanent home and feeling safe
and trusting people [wa]s paramount,” and that the greater benefit would come
from him having a stable home, compared to the benefit of having a sibling
relationship.
Mother
testified she had been clean and sober for a year and was seeing a
therapist. She believed C.B.D. was very
bonded to his siblings and that it was important for the children to maintain
contact, as they had grown up together and had a connection. She knew she had done something horrible and
that it was her fault. She wished to be
a part of healing her son. Her friend
Cheryl M., who had known Mother since Mother was four years old, testified that
she had taken care of the children and that C.B.D. and C.D. adored each
other. C.B.D.’s Court Appointed Special
Advocate told the court that she wanted “C.B.D. to have a permanent adoptable
home as soon as possible.”
After
hearing testimony and argument, the juvenile court terminated Mother’s parental
rights to C.B.D., finding there was clear
and convincing evidence that C.B.D. was adoptable and that the benefit to
C.B.D. in maintaining his sibling relationship or relationship with Mother was
outweighed by his need for permanency.
The court also noted as to the 388 petition, “In listening to the
testimony that I’ve heard today from [Mother], as well as from Dr. Main, even
if I had granted the 388 hearing, I would not have grant[ed] the relief. I don’t think your client was prejudiced by
the denial of the hearing.”
On
July 1, 2011, Mother filed a notice of
appeal challenging the juvenile court’s orders regarding C.B.D.’s
placement.
notice of appeal from the orders denying her 388 petition and terminating her
parental rights to C.B.D. (Case A132864.) We consolidated the two appeals on
November 4, 2011.
Discussion
Mother
contends the juvenile court erred in summarily denying her 388 petition because
she had shown a prima facie case for
an evidentiary hearing. Assuming,
without deciding, that this issue is not moot as the Department argues it is,
we conclude there was no error.
Section
388, subdivision (a), provides in relevant part: “Any parent . . . [of] a child who
is a dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court . . . for
a hearing to change, modify, or set aside any order of court previously made
. . . .” To obtain an
evidentiary hearing on a 388 petition, the parent must plead facts sufficient
for a prima facie showing that:
(1) the circumstances have changed since the prior juvenile court
order; and (2) the proposed modification will be in the best interests of
the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Factors to be considered in determining what
is in the best interests of a child under section 388 include: “(1) the seriousness of the problem
which led to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent children
to both parent and caretakers; and
(3) the degree to which the problem may be easily removed or ameliorated,
and the degree to which it actually has been.”
(In re Kimberly F.
(1997) 56 Cal.App.4th 519, 532.)
Here,
the problems that led to the dependency were egregious, as Mother engaged in
numerous acts of cruelty towards A.M. and C.B.D. in front of C.D. as set forth
above and in our prior opinion. As to
the relative strength of bonds, the Department noted in its 366.26 report that
C.D. did not show any distress at the end of visits with Mother as a normally
bonded toddler would, and in fact showed more distress when leaving her
then-foster mother. A therapist opined
that C.D. had a very strong attachment to her former foster parents with whom
she had been living until she was placed with her father. Although Mother testified regarding her bond
with C.B.D., C.B.D. did not wish to see her and was eager to find a “forever
family.” Dr. Main referred to
C.B.D.’s relationship with Mother as an “insecure attachment,” and C.B.D.’s
therapist believed that visitation with Mother would be detrimental to his
well-being. In contrast, C.B.D. was
bonded to his former and new fost-adopt families, called his new fost-adopt
parents “mom” and “dad,” and looked to them for guidance and reassurance.
Finally,
as the court noted, “The circumstances of the abuse were exacerbated by
Mother’s continued alcohol abuse despite having received alcohol education
after being involved in an accident while driving under the influence with
C.B.D. in the car. Mother had a history
of 11 past referrals over the course of ten years involving abuse and neglect
of her children. She had a criminal
history that involved convictions for violent acts of battery and willful
cruelty to a child. She received various
services including case management, individual counseling, parenting classes,
referrals for drug testing, and referrals to community resources, yet continued
to abuse her children.” “Once a case has
advanced to the permanency planning stage, it is important not only to seek an
appropriate permanent solution, but also to implement that solution promptly to
minimize the time the child is in legal limbo and to allow the child’s
caretakers to make a full emotional commitment to the child.” (In re
D.R. (2011) 193 Cal.App.4th 1494, 1513.)
Although Mother had made some progress in addressing her issues, the
problems that led to the dependency were not likely to be—and had not
been—“removed or ameliorated.” (See
Mother
asserts the juvenile court nevertheless should have granted her request for an
evidentiary hearing because she had shown a change of circumstances, and
“[b]est interests can be implied from a change of circumstance.” (See, e.g., In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) “It is not enough,” however, “for a parent to
show just a genuine change of
circumstances under the statute. The parent
must show that the undoing of the prior order would be in the best interests of
the child.” (In re Kimberly F., supra,
56 Cal.App.4th at p. 529.) “The
fact that the parent ‘makes relatively last-minute (albeit genuine) changes’
does not automatically tip the scale in the parent’s favor.” (In re
D.R., supra, 193 Cal.App.4th at
p. 1512.) Although Mother showed
she had participated in residential treatment and had been sober for one year,
the reasons for removal—her long history of physical and emotional abuse—were
unresolved. While Mother’s attempts at
rehabilitation are commendable, “ ‘[a] petition which alleges merely
changing circumstances and would mean delaying the selection of a permanent
home for a child to see if a parent . . . might be able to reunify at
some future point, does not promote stability for the child or the child’s best
interests. [Citation.]’ ‘ “[C]hildhood does not wait for the
parent to become adequate.” ’ ”
(In re Casey D. (1999)
70 Cal.App.4th 38, 47.) The juvenile
court did not err in summarily denying Mother’s 388 petition.
termination of parental rights
Mother
contends the juvenile court erred in terminating her parental rights to C.B.D.
because the sibling relationship exception applied. We disagree.
Although
there is a strong preference for adoption as the permanent plan for dependent
children who are unable to reunify with their parents, there are statutory
exceptions to the rule where the court “finds a compelling reason for determining
that termination would be detrimental to the
child . . . .”
(§ 366.26, subd. (c)(1)(B).)
Section 366.26, subdivision (c)(1)(B)(v), provides an exception to
termination of parental rights when termination would substantially interfere
with the child’s sibling relationship and the severance of the relationship
would be so detrimental to the child as to outweigh the benefits of
adoption. (
942, 951-953.)
In
determining whether the sibling relationship exception applies, the juvenile
court “must balance the beneficial interest of the child in maintaining the
sibling relationship, which might leave the child in a tenuous guardianship or
foster home placement, against the sense of security and belonging adoption and
a new home would confer.” (
terminating parental rights would substantially interfere with the sibling
relationship by evaluating the nature and extent of the relationship, including
whether the child and sibling were raised in the same house, shared significant
common experiences or have existing close and strong bonds.” (Id.
at pp. 951-952.) “If the court
determines terminating parental rights would substantially interfere with the
sibling relationship, the court is then directed to weigh the child’s best
interest in continuing that sibling relationship against the benefit the child
would receive by the permanency of adoption.
(Id. at p. 952.) “[T]he application of this exception will be
rare, particularly when the proceedings concern young children whose needs for
a competent, caring and stable parent are paramount.” (In re
Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
Here,
assuming C.B.D. shared a significant bond with his siblings, we conclude the
juvenile court did not err in finding that the sibling relationship exception
did not apply. Dr. Main stated in
her report, “It is imperative that he receives the stability and love he
requires in a permanent home environment as soon as possible.” She testified that “be[]ing in a permanent
home and feeling safe and trusting people [wa]s paramount” for C.B.D. and
agreed that the greater benefit would come from his having a stable home,
compared to the benefit of maintaining his relationship with his siblings. Moreover, there was evidence that C.B.D. was
thriving in his fost-adopt home. The
366.26 report stated he had become a part of the family “quickly and
effortlessly” and that the fost-adopt family was attentive to his needs and
excited to help him and share their love and wisdom with him. After a few weeks, C.B.D. asked his
fost-adopt parents if he could call them “mom” and “dad,” which made the
fost-adopt parents very happy. C.B.D.
“stated, ‘I love my new home (with emphasis on love),’ [and] spontaneously said
he wanted to live there forever.”
C.B.D.’s Court Appointed Special Advocate, who had spent 171 hours on
the case, recommended that adoption be the permanent plan for him. Under these circumstances, valuing C.B.D.’s
continuing relationship with his siblings over adoption would have deprived him
of the ability to belong to a “forever family,” and would not have been in his
best interests.
Mother
argues the juvenile court improperly relied on the fost-adopt family’s
“unenforceable promise of future visitation” in finding the sibling
relationship exception did not apply and terminating her parental rights. However, she does not cite to anything in the
record indicating the court relied on such an “unenforceable promise.”
C.B.D. of maintaining his sibling relationship was “so outweighed for his need
for permanency that [it was] not [a] determinative factor[] in not terminating
parental rights.” In other words, it
found that even if termination of parental rights resulted in C.B.D. not being
able to maintain his sibling relationships, it was still in his best interests
to place him in a permanent, adoptive home.
Disposition
The
juvenile court’s orders are affirmed. In
light of our decision, we hereby deny the Department’s motion to dismiss the
appeal in part and its request for judicial notice of—or in the alternative, to
augment the record with—documents that purport to support their position that
the juvenile court’s orders should be affirmed.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
and Institutions Code unless otherwise stated.
A.M. has been placed with her father and is not a party to this appeal.
that a permanency hearing was not appropriate for her because she was being
placed with her father and was not scheduled to be adopted or placed in a legal
guardianship or long-term foster care.
(A130664, pp. 20-21.) To
obtain context, maintain consistency and economize judicial resources, we take
judicial notice of our prior opinion and the record in the prior matter. (See Evid. Code, § 451, subd. (a);
Cal.App.4th 670, 674, fn. 3.)
